Supremes decision implications: new hurdles from Home Office?

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Source: Scotsman

By Jamie Kerr

In 2008, a 25-year-old man only known as XY from Iran claimed asylum in the UK based on being homosexual after he had a seven-year-old relationship with a male friend in his homeland.

XY told the UK authorities that his partner, referred to as A, was arrested in October 2006 and because of that, he assumed that both had come to the attention of Iranian authorities because of their sexuality. He was refused asylum and later, an immigration judge rejected the appeal against the Home Office's decision. Eventually, the English Court of Appeal upheld the refusal.

In making that decision, Lord Justice Stanley Burnton stated: "The reason he left Iran was not stated by him to be his intolerable situation as a clandestine homosexual, but his fear of arrest and punishment because of the detection of his relationship and the arrest of A.

"He was disbelieved on the basis for his alleged fear. It was for him to establish that he could not reasonably be expected to tolerate his condition if he were returned to Iran. He did not establish, or even assert, facts on which such a finding could be based."

Last week, XY's case and others became open to fresh appeals after the UK Supreme Court unanimously asserted that to compel a homosexual person to "pretend that their sexuality does not exist" is deny him his "fundamental right to be who he is".

"The Home Office will be very worried about a flood-gate argument"

The decision in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department reinforced a policy agreed by the new coalition government in May but not yet implemented by the Home Office or the Asylum and Immigration Tribunals, according to solicitors for asylum seekers.

Home Secretary Theresa May called the case a vindication of the government position and claimed that it gave an immediate legal bases for reframing their guidance.

The ruling by the Supreme Court is one of the most significant condemnations of Home Office policy in recent years. It ranks with cases such as the appeal by teenager Zainab Esther Fornah in 2006 relating to women fleeing female genital mutilation (FGM).

In that case, the Home Office, tribunal system and Court of Appeal, had argued a woman could not be a persecuted minority if all women would be subjected to FGM. The House of Lords ruled women could be persecuted simply because of their gender.

Similarly, in cases prior to HJ and HT, UK Border Agency staff and the appeals system had claimed a foreign state could not persecute someone if they were hiding their "illegal" sexuality.

Jamie Kerr, an associate with Drummond Miller in Glasgow, says cases of asylum seekers claiming persecution for homosexuality were clustered around Iran, and to a lesser extent Pakistan and some African countries.

He says the Supreme Court decision was significant and some failed asylum seekers lodge will bring new appeals.

"These decisions cannot stand any more," he insists. "I think most gay or LGBT (lesbian, gay, bisexual or transsexual] cases will have been refused on grounds of living discreetly. Now they are perfectly entitled to file fresh appeals. I have quite a few who will be on the phone very quickly.

"The Supreme Court case is fundamental because the 'living discreetly' idea cannot be correct in any circumstances because it undermines the Refugee Convention.

"That was set up so countries took responsibility for refugees suffering at the hands of their own countries. If you listened to what the Home Office was saying, it's a very slippery slope. And from a legal perspective, it's very difficult to tell homosexuals to live discreetly."

Euan McKay, with Livingstone Brown, said the case could be used in other cases where the Home Office tried to argue individuals could be discreet, not just about sexuality.

He says: "There will be a wider impact. The question for Christians from Iran has been if they are not seen to be proselytising they would not qualify as refugees and are advised to go back, and be discreet and they would not be persecuted. Now with HJ and HT, if someone was going to be discreet, if the reason was out of fear of persecution, then that might be what made them a refugee."

Mr Mckay says cases where the Home Office and courts argued individuals could be discreet, in their community or by moving elsewhere in the country to avoid alleged persecution, could consider fresh appeals.

He adds: "It's a significant decision, because cases previously set a very high burden on the asylum seeker. Now they cannot be expected to go back and 'blend in'."

A recent report by gay lobby group Stonewall said, between 2005 and 2009, the Home Office had initially refused 98 per cent of all gay or lesbian asylum claims. But Andrew Bradly, with Peter G Farrell solicitors, agrees that the Supreme Court decision could have a more wide ranging effect.

"I don't think it just affects sexuality," he says. "People can sometimes be refused asylum on religious grounds if asked if they could practice it discreetly if they went back to their own country.

"The Home Office has been slightly more accepting of the first test on whether someone is gay. They might bring in more implausibilities now and challenge credibility. Once they start challenging credibility, it's very difficult to get over that hurdle."

The so-called "reasonable tolerability test" - or "hate in the house" to opponents - set a dangerous precedent, says Jamie Kerr. Would Christians be expected to hide their faith, or political dissidents be urged not be political?

Mr Kerr warns that the Home Office could now put up new hurdles by making it harder to prove an asylum seeker is homosexual.

"Up to now, there has been a three-step test," he said.

"The first is, 'Are you gay?'. The second is, 'Would you face persecution if you were returned home?' And the third, 'Could you be discreet?' Now potentially the first question will be much more difficult. The Home Office will be very worried about a flood-gate argument.

"The Home Office and the tribunals were arguing daily that individuals can live discreetly. There was no trickle-down change since the election, despite what the coalition said. Every day people are losing their cases.

"It will be interesting how the UK Borders Agency and the courts apply the Supreme Court decision. The case seems pretty straightforward and in most cases the UK Borders Agency should be giving people leave to remain, or will they try to wriggle out of it."